The National Center for Transgender Equality, NCTE, and the Human Rights Campaign gather on Pennsylvania Avenue in front of the White House in Washington, Monday, Oct. 22, 2018, for a #WontBeErased rally. (AP Photo/Carolyn Kaster)

Fury over reported federal plan targeting transgender people

October 22, 2018 - 4:26 pm

The Associated Press

WASHINGTON (AP) — LGBT leaders across the U.S. reacted with fury Monday to a report that the Trump administration is considering adoption of a new definition of gender that would effectively deny federal recognition and civil rights protections to transgender Americans.

"I feel very threatened, but I am absolutely resolute," Mara Keisling, executive director of the National Center for Transgender Rights, said at a news conference convened by more than a dozen activist leaders. "We will stand up and be resilient, and we will be here long after this administration is in the trash heap."

On Sunday, The New York Times reported that the Department of Health and Human Services was circulating a memo proposing that gender be defined as an immutable biological condition determined by a person's sex organs at birth. The proposal would define sex as either male or female, and any dispute about one's sex would have to be clarified through genetic testing, according to the Times' account of the memo.

President Donald Trump addressed the matter briefly as he left the White House for a political trip to Houston, but left unclear how his administration plans to proceed.

"We have a lot of different concepts right now," Trump said. "They have a lot of different things happening with respect to transgender right now — you know that as well as I do — and we're looking at it very seriously."

Trump added: "I'm protecting everybody."

The Cabinet agency had acknowledged months ago that it was working to rewrite a federal rule that bars discrimination in health care based on "gender identity." It cited a Texas-based federal judge's opinion that the original rule went too far in concluding that discrimination based on gender identity is a form of sex discrimination, which is forbidden by civil rights laws.

The department said Monday it would not comment on "alleged leaked documents." It did release a statement from Roger Severino, head of its Office for Civil Rights, saying his agency was reviewing the issue while abiding by the 2016 ruling from the Texas-based federal judge, Reed O'Connor.

LGBT activists, who pledged legal challenges if the reported memo leads to official policy, said several other courts had issued rulings contrary to O'Connor's.

"For years, courts across the country have recognized that discriminating against someone because they are transgender is a form of sex discrimination, full stop," said Diana Flynn, Lambda Legal's litigation director. "If this administration wants to try and turn back the clock by moving ahead with its own legally frivolous and scientifically unsupportable definition of sex, we will be there to meet that challenge."

Shannon Minter, a transgender attorney with the National Center for Lesbian Rights, called the reported plan a "cynical political ploy to sow discord and energize a right-wing base" before the Nov. 6 election.

UCLA legal scholar Jocelyn Samuels, who ran the HHS civil rights office in the Obama administration, said the Trump administration would be going beyond established law if it adopted the policy in the memo.

"What they are saying is you do not get to decide your sex; it is the government that will decide your sex," said Samuels.

For LGBT-rights leaders, it's the administration's latest attack on transgender Americans. Among the others are an attempt to ban them from military service; a memo from Attorney General Jeff Sessions concluding that civil rights laws don't protect transgender people from discrimination on the job; and the scrapping of Obama-era guidance encouraging school officials to let transgender students use school bathrooms that matched their gender identities.

Omar Gonzalez-Pagan, a lawyer with Lambda Legal, said the proposed rule change appears to still be undergoing White House review. It would need to be signed off by the departments of Justice, Labor and Education, which are also involved with civil rights enforcement.

He said "the purpose of this rule is to erase transgender people from existence, to write them off from federal law, and to institute a definition that is contrary to case law, contrary to medical and scientific understanding, and contrary to the lived experience of transgender people."

While social mores enter into the debate, medical and scientific experts have long recognized a condition called "gender dysphoria" — discomfort or distress caused by a discrepancy between the gender that a person identifies as and the gender at birth. Consequences can include severe depression. Treatment can range from sex-reassignment surgery and hormones to people changing their outward appearance by adopting a different hairstyle or clothing.

According to an estimate by the Williams Institute at the UCLA School of Law, there are about 1.4 million transgender adults in the United States.